State of Florida

DEP06-1058 STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION

In re:

PETITION FOR WAIVER OF RULE 62-312.080(7) F.A.C., OGC Case No. 05-2815 BY JOURNEY’S INC. OF S.G.I. ______/

FINAL ORDER GRANTING PETITION FOR WAIVER OF RULE 62-312.080(7), F.A.C.

On November 4, 2005, Wild Women, Inc., filed a petition for waiver with the

Department of Environmental Protection (Department) under section 120.542 of the Florida

Statutes. See Exhibit 1. The petition requests a waiver of the provision of rule 62-312.080(7),

F.A.C., which prohibits an applicant from getting a permit to dredge or fill in Class II waters approved for shellfish harvesting. The Department received no public comments in response to the notice of receipt of Wild Women, Inc.’s petition for waiver that was published on the

Department’s Official Notice Internet website on December 23, 2005. The petitioner granted the

Department a waiver of the 90-day clock to take final agency action of its petition for waiver. On

June 28, 2006, the petitioner’s consultant, Garlick Environmental Associates, Inc., filed a request that the Department process the petition for a waiver in the name of Journey’s Inc. of S.G.I.

(Journey’s Inc.)(FEI No. 593486182) instead of Wild Women, Inc.

1. Wild Women, Inc.’s mailing address is c/o Jean G. McMillan, 240 East 3rd Street,

St. George Island, Florida 32328.

2. Journey’s Inc.’s mailing address is c/o Jean G. McMillan, 240 East 3 rd Street, St.

George Island, Florida 32328.

3. Wild Women, Inc., is the riparian upland owner of a commercial lot contiguous to the Apalachicola Bay Aquatic Preserve in Franklin County. 4. Journey’s Inc., is a Florida corporation that rents canoes and kayaks to the general public. Journey’s Inc., has a long term lease with Wild Women, Inc., to operate its canoe and kayak business from the riparian property owned by Wild Woman, Inc. Wild Women, Inc., and Journey’s Inc., have filed an application with the Department for a dredge and fill permit to construct a small commercial pier or dock in the Apalachicola Bay Aquatic Preserve in Franklin

County.

5. The Apalachicola Bay is a Class II water body approved for shellfish harvesting.

6. Rule 62-312.080(7) prohibits an applicant from getting a permit to dredge or fill in Class II waters approved for shellfish harvesting. Specifically, this rule states that

(7) Permits for dredging or filling directly in Class II or Class III waters that are approved for shellfish harvesting by the Department of Environmental Protection shall not be issued.

Rule 62-312.080(7), F.A.C.

7. Section 120.542 of the Administrative Procedure Act authorizes an agency to grant a variance from or waiver of its administrative rules when “the person subject to the rule demonstrates that the purpose of the underlying statute will be or has been achieved by other means by the person and when application of a rule would create a substantial hardship or would violate principles of fairness.” Section 120.542(2), F.S. Section 120.542 defines “substantial hardship” as “a demonstrated economic, technological, legal, or other type of hardship to the person requesting the variance or waiver.” Section 120.542 further states that “principles of fairness” will be violated “when the literal application of a rule affects a particular person in a manner significantly different from the way it affects other similarly situated persons who are subject to the rule.” Section 120.542(2), F.S.

2 PURPOSE OF THE UNDERLYING STATUTE WILL BE ACHIEVED BY OTHER MEANS

8. Rule 62-312.080 implements Section 403.061 of the Florida Statutes.

Specifically, Section 403.061(29) of the Florida Statutes authorizes the Department to adopt

“special criteria to protect Class II shellfish harvesting waters.”

9. The Department finds that the underlying purpose of Section 403.061(29) is to protect shellfish harvesting waters from pollution sources that affect the public’s health and safety as it relates to the consumption of harvested shellfish.

10. The Shellfish Environmental Assessment Section (SEAS) in the Department of

Agriculture and Consumer Services, which classifies areas for shellfish harvesting in the State of

Florida, has no objection to the dredge and fill project in the Apalachicola Bay proposed by

Journey’s Inc. In fact, the Department has determined that there are no active oyster beds in close proximity to the proposed site. The nearest beds are approximately one mile away from the closest point of the project proposed by Journey’s Inc.

11. In accordance with the associated dredge and fill permit application filed by

Journey’s Inc., and Wild Women, Inc., they desire to construct a small commercial

pier or dock in an area of the Apalachicola Bay that is approved for shellfish

harvesting. Journey’s Inc., has agreed to take various measures to protect the nearby

shellfish and the human health of anyone who might consume the nearby shellfish.

Journey’s Inc. has agreed to place weighted turbidity curtains around the perimeter of

the site during installation of the pilings to ensure that water quality standards will be

met throughout construction. In addition, Journey’s Inc., has agreed to install the

pilings with a low-pressure jet, and to contain any spoil materials on site. Journey’s

Inc., has agreed to monitor water quality standards throughout the dredging

operations and halt the construction in the event water quality standards are

3 exceeded. In addition, the pier will be located in such shallow water that motorized vessels will not be able to approach the pier.

4 APPLICATION OF RULE 62-312.080(7), F.A.C., WILL CREATE A SUBSTANTIAL HARDSHIP FOR JOURNEY’S INC.

12. Journey’s Inc., has demonstrated that application of rule 62-312.080(7), F.A.C.,

which prohibits construction within Class II waters approved for shellfish harvesting,

would create an economic hardship for the corporation.

13. Access to the water is critical to the success of Journey’s Inc.’s business of renting

canoes and kayaks. If the petitioner is denied this petition for a waiver, it will be

required to expend significant amounts of money to provide transportation to the

nearest public boat launching facility. The petitioner would be required to purchase a

van, purchase liability insurance, and provide a licensed chauffeur to transport

clients, who only rent a canoe or kayak for an hour at a time, to a public boat

launching facility.

14. Strict application of rule 62-312.080(7), F.A.C., also creates an economic hardship,

because the property at which the petitioner has applied to construct the pier is not

zoned residential property. Because the property is not zoned residential property,

the petitioner cannot construct a single-family dock under the statutory exemption in

Section 403.813(2), F.S. Denial of this petition will also substantially depreciate the

value of the petitioner’s upland riparian property and commercial business.

15. For the foregoing reasons, Journey’s Inc., has demonstrated that the granting of this waiver will otherwise achieve the underlying purpose of the statute, and that strict adherence to the requirements of rule 62-312.080(7) would create a substantial hardship for Journey’s Inc.

Therefore, Journey’s Inc., is entitled to a waiver from the provision in rule 62-312.080(7), F.A.C., that prohibits an applicant from getting a permit to dredge or fill in Class II waters approved for shellfish harvesting, provided the following conditions are met:

a. Journey’s Inc., must use nonleaching piles to construct the dock using a low

pressure jet;

5 b. Journey’s Inc., must construct the dock with grating to reduce shading to the

greatest extent possible;

c. Journey’s Inc. must contain any spoil material on site during dredging to

construct the dock;

d. Journey’s Inc., must construct the dock with double railing;

e. Journey’s Inc., must not store any canoes or kayaks at the dock to reduce shading

to the greatest extent possible;

f. Journey’s Inc., must not allow any motorized vessels, including personal water

craft, to use the dock;

g. Journey’s Inc., must post signs at the dock prohibiting motorized vessels,

including personal water craft, from using the dock;

h. Journey’s Inc., must place trash receptacles near the dock; and

i. This order is valid only for Journey’s Inc., for use at its kayak/canoe rental

business located at 240 East 3rd Street, St. George Island, Florida, Section 29,

Township 9 South, Range 6 West in Franklin County.

THEREFORE,

IT IS ORDERED THAT the Petition for a Waiver of Rule 62-312.080(7), F.A.C., filed by JOURNEY’S INC. OF S.G.I., is granted subject to the above listed conditions.

NOTICE OF RIGHTS

This final order will become final unless a petition for an administrative proceeding is filed pursuant to the provisions of sections 120.569 and 120.57 of the Florida Statutes. Any person whose substantial interests are affected by the Department’s action may file such a petition. The petition must contain the information set forth below and must be filed (received) in the Department’s Office of General Counsel, 3900 Commonwealth Boulevard, MS 35,

Tallahassee, Florida 32399-3000. Petitions filed by Journey’s Inc. of S.G.I. or any of the parties

6 listed below must be filed within 21 days of receipt of this order. Petitions filed by any other person must be filed within 21 days of publication of the public notice or within 21 days of receipt of this order, whichever occurs first. A petitioner must mail a copy of the petition to

Journey’s Inc. of S.G.I., c/o Jean G. McMillan, 240 East 3rd Street, St. George Island, FL 32328, at the time of filing. The failure of any person to file a petition within the appropriate time period shall constitute a waiver of that person’s right to request an administrative determination

(hearing) under sections 120.569 and 120.57 of the Florida Statutes, or to intervene in this proceeding (initiated by a party) and participate as a party to it. Any subsequent intervention will only be at the discretion of the presiding officer upon the filing of a motion in compliance with rule 28-106.205 of the Florida Administrative Code.

A petition must contain the following information:

(a) The name, address, and telephone number of each petitioner; the Department case identification number and the county in which the subject matter or activity is located;

(b) A statement of how and when each petitioner received notice of the Department action;

Department action;

(d) A statement of the material facts disputed by the petitioner, if any;

(e) A statement of facts that the petitioner contends warrant reversal or modification of the

Department action;

(f) A statement of which rules or statutes the petitioner contends require reversal or modification of the Department action; and

(g) A statement of the relief sought by the petitioner, stating precisely the action that the petitioner wants the Department to take.

Because the administrative hearing process is designed to formulate final agency action, the filing of a petition means that the Department’s final action may be different from the position taken by it in this order. Persons whose substantial interests will be affected by any such final

7 decision of the Department on the petition have the right to petition to become a party to the proceeding, in accordance with the requirements set forth above.

Mediation under section 120.573 of the Florida Statutes is not available for this proceeding.

This action is final and effective on the date filed with the Clerk of the Department unless a petition is filed in accordance with the above.

A party to this order has the right to seek judicial review of it under section 120.68 of the

Florida Statutes, by filing a notice of appeal under rule 9.110 of the Florida Rules of Appellate

Procedure with the clerk of the Department in the Office of General Counsel, Mail Station 35, 3900

Commonwealth Boulevard, Tallahassee, Florida 32399-3000, and by filing a copy of the notice of appeal accompanied by the applicable filing fees with the appropriate district court of appeal. The notice must be filed within thirty days after this order is filed with the clerk of the Department.

DONE and ORDERED this ______day of June 2006, in Pensacola, Florida.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION

______BARBARA RUTH Program Administrator

160 Governmental Center Pensacola, Florida 32501-5794 Telephone: (850) 595-8300

FILING AND ACKNOWLEDGMENT FILED on this date, under section 120.52 of the Florida Statutes, with the designated Department Clerk, who hereby acknowledges receipt of this order.

______CLERK DATE CERTIFICATE OF SERVICE

I CERTIFY that a true copy of the foregoing was mailed to Jean G. McMillan, 240 East 3rd Street, St. George Island, FL 32328, and Clayton Studstill, Esq., Garlick Environmental

8 Associates, Inc., 48 Avenue D, P.O. Box 385, Apalachicola, FL 32329 on this ______day of June, 2006.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION

______

Please see PDF version for Exhibit.